Code of Massachusetts Regulations
105 CMR - DEPARTMENT OF PUBLIC HEALTH
Title 105 CMR 155.000 - Patient And Resident Abuse Prevention, Reporting, Investigation, Penalties And Registry
Section 155.003 - Definitions
As used in 105 CMR 155.000 the following definitions apply, in addition to those appearing in M.G.L. c. 111, § 72F, unless the context or subject matter clearly requires otherwise:
Abuse. The willful infliction of injury, unreasonable confinement, intimidation, including verbal or mental abuse, or punishment with resulting physical harm, pain, or mental anguish, or assault and battery; provided, however, that verbal or mental abuse shall require a knowing and willful act directed at a specific patient or resident. In determining whether or not abuse has occurred, the following standards shall apply:
(1) A patient or resident has been abused if:
(a) An individual has made or caused physical contact with the patient or resident in question, either through direct bodily contact or through the use of some object or substance;
(b) The physical contact in question resulted in death, physical injury, pain or psychological harm to the patient or resident in question; and
(c) The physical contact in question cannot be justified under any of the exceptions set forth in 105 CMR 155.003: Abuse (3).
(2) A patient or resident has been abused if an individual has knowingly and willfully used oral, written, or gestured language with the intent to injure, confine, intimidate, or punish the patient or resident in question.
(3) Notwithstanding the provisions of 105 CMR 155.003: Abuse (1)(a) through (c) and (2), if an individual has used physical contact with a patient or resident which harms that patient or resident, such contact shall not constitute abuse if:
(a) The physical contact with the patient or resident occurs in the course of carrying out a prescribed form of care, treatment or therapy, and both the type of physical contact involved and the amount of force used are necessary in order to carry out that prescribed form of care, treatment or therapy, provided that the patient or resident has not refused such care, treatment or therapy;
(b) The physical contact with the patient or resident occurs in the course of providing comfort or assistance to the patient or resident, and both the type of physical contact involved and the amount of force used are necessary in order to provide comfort or assistance to the patient or resident;
(c) The physical contact with the patient or resident occurs in the course of attempting to restrain the behavior of the patient or resident in question, and both the type of physical contact involved and the amount of force used are necessary in order to prevent that patient or resident from injuring himself, herself, or any other person; or
(d) The patient or resident, in accordance with his or her expressed or implied consent, is being furnished or relies upon treatment by spiritual means through prayer alone in accordance with a religious method of healing in lieu of medical treatment.
(4) Physical contact with a patient or resident which harms that patient or resident, and which occurs for the purpose of retaliating against that patient or resident, shall constitute abuse.
Accused. An employee of a facility, including an individual working under contract, or a volunteer working in a facility, an employee of, including an individual working under contract, or a volunteer working for a home health agency, homemaker agency or hospice program who is the subject of an allegation of abuse, neglect or mistreatment of a patient or resident, or an allegation of misappropriation of patient or resident property.
Adjudicated Finding. The determination of a hearing officer at the conclusion of a hearing as to whether or not a nurse aide, home health aide, or homemaker abused, neglected, or mistreated a patient or resident or misappropriated patient or resident property.
Commissioner. The Commissioner of the Department of Public Health or his or her designee.
Department. The Massachusetts Department of Public Health.
Facility. An entity required to be licensed under M.G.L. c. 111, § 71.
Finding. The Department's determination, at the conclusion of its investigation, that an allegation of patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property against an accused is valid or not.
Harm. Includes, but is not limited to, death, physical injury, pain or psychological injury. Psychological injury includes, but is not limited to, conduct which coerces or intimidates a patient or resident, or which subjects that patient or resident to scorn, ridicule, humiliation, or produces a noticeable level of mental or emotional distress.
Home Health Aide. An individual hired or employed by a home health agency or a hospice program who provides health services to individuals in their residences.
Home Health Agency. An entity, however organized, whether conducted for profit or not for profit, which is advertised, announced, established or maintained for the purpose of providing health and/or homemaker services to individuals in their residences.
Homemaker. An individual hired or employed by a home health agency, homemaker agency, or a hospice program, who works under agency or program supervision, and is trained by an agency or program to provide homemaking services, such as meal preparation, cleaning and laundry as well as other essential nutritional and environmental services, in a patient's residence, as needed by the patient.
Homemaker Agency. Any entity that hires or employs homemakers to provide homemaking services, which are based upon a patient's identified health, infirmity or disability related needs, in a patient's residence.
Hospice Program. An entity required to be licensed under M.G.L. c. 111, § 57D or a hospice service of a hospital licensed under M.G.L. c. 111, § 51.
Hospice Worker. A paid individual hired by or employed by a hospice program to provide hospice services to a patient.
Isolation Technique. Any method of physically segregating a patient or resident from other persons or restricting a patient's or resident's opportunities to interact or communicate with other persons. Emergency or short-term monitored separation from others will not be considered an isolation technique if used for a limited period of time as a therapeutic intervention to reduce agitation until the behavior requiring the intervention is resolved.
Mandatory Reporting Individual. Any person who is paid for caring for a patient or resident, whether on a permanent or temporary basis, who is:
(1) a physician;
(2) a medical intern or resident;
(3) a physician assistant;
(4) a registered nurse;
(5) a licensed practical nurse;
(6) a nurse aide;
(7) an orderly;
(8) a home health aide;
(9) a homemaker;
(10) a hospice worker;
(11) an administrator of a facility, home health agency, homemaker agency, or hospice program;
(12) a responsible person in a rest home;
(13) a medical examiner;
(14) a dentist;
(15) an optometrist;
(16) an optician;
(17) a chiropractor;
(18) a podiatrist;
(19) a coroner;
(20) a police officer;
(21) a speech pathologist;
(22) an audiologist;
(23) a social worker;
(24) a pharmacist;
(25) a physical therapist;
(26) an occupational therapist; or
(27) a health officer.
Misappropriation of Patient or Resident Property. The deliberate misplacement, exploitation or wrongful temporary or permanent use of a patient's or resident's belongings or money without such patient's or resident's consent.
Mistreatment. The use of medications, or treatments, or isolation, or physical or chemical restraints that harm or are likely to harm the patient or resident. In determining whether or not mistreatment has occurred, the following standards shall apply:
(1) A patient or resident has been mistreated if:
(a) An individual used some type of medication, treatment, isolation technique or restraint on the patient or resident;
(b) The particular use of the medication, treatment, isolation technique or restraint was either intentional or careless in nature, contrary to the patient or resident's expressed decision to refuse such treatment, or contrary to the patient's or resident's written care plan;
(c) The particular use of the medication, treatment, isolation technique or restraint resulted, or was likely to result, in harm to the patient or resident involved, including but not limited to, physical injury, pain, or death, unreasonable restriction of the ability to move around, unreasonable restriction of the ability to communicate with others, or psychological harm; and
(d) The particular use of the medication, treatment, isolation technique or restraint cannot be justified under any of the exceptions set forth in 105 CMR 155.003: Mistreatment (2).
(2) Notwithstanding the provisions of 105 CMR 155.003: Mistreatment (1), the following shall not constitute mistreatment:
(a) Use of an isolation technique for the purpose of preventing a documented contagious disease from spreading to other persons, as long as this technique is the least restrictive available method of preventing the spread of that disease, and reasonable care is exercised with the use of that technique;
(b) Use of a particular medication, isolation technique or restraint in the course of carrying out a prescribed form of treatment or therapy, if such use has been authorized by a physician's order or, when applicable, by a court of competent jurisdiction in accordance with applicable law; or
(c) Use of a particular medication, isolation technique, or restraint for the purpose of preventing a patient or resident from engaging in behavior which may injure him or her or injure another person, as long as the particular use in question is the least restrictive available alternative which will be effective in preventing such harm and reasonable care is exercised in connection with that use.
Neglect. Failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness. In determining whether or not neglect has occurred, the following standards shall apply:
(1) A patient or resident has been neglected if:
(a) An individual has failed to provide appropriate care, treatment or service to the patient or resident;
(b) The individual's failure to provide the treatment, care or service to the patient or resident is either intentional or the result of carelessness; and
(c) As a result of the failure to provide the treatment, care or service, the individual has failed to maintain the health or safety of the patient or resident, as evidenced by harm to the patient or resident, or a deterioration in the patient or resident's physical, mental or emotional condition.
(2) Notwithstanding the provisions of 105 CMR 155.003: Neglect (1):
(a) A patient or resident shall not be considered to be neglected for the reason that such patient or resident, in accordance with his or her expressed or implied consent, is being furnished or relies upon treatment by spiritual means through prayer alone in accordance with a religious method of healing in lieu of medical treatment;
(b) Neglect of a patient or resident shall not be considered to have been caused by an accused if such accused can demonstrate that such neglect was caused by factors beyond his or her control.
Nonmandatory Reporting Individual. Any person who is not a mandatory reporting individual as defined in 105 CMR 155.003 and who makes a report of suspected patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property to the Department pursuant to M.G.L. c. 111, § 72G and 105 CMR 155.000.
Nurse Aide. Any individual who is not a licensed health professional, but is employed or hired by a facility, and who provides nursing or nursing-related services to residents.
Patient. An individual who receives health, homemaker or hospice services from an individual employed by a home health agency, homemaker agency, or a hospice program.
Registered or Licensed Professional. Anyperson engaged in any occupation or profession which is subject to licensure, registration or certification including individuals licensed, registered or certified under M.G.L. c. 112, §§ 2 through 36, 43 through 53, 66 through 81C, 87F through 87KK, 87EEE through 87OOO, 87WWW through 87ZZZ, 89 through 97, 108 through 147, or 163 through 172.
Registry. Nurse aide registry as established in accordance with M.G.L. c. 111, § 72J
Resident. An individual who resides in a long term care facility licensed under M.G.L. c. 111, § 71.
Restraint. Any physical, chemical or mechanical method of restricting a patient's or resident's ability to move all or part of his or her body or communicate with other persons.
Verbal Abuse. Any use of oral, written or gestured language that willfully includes disparaging, derogatory or frightening terms to patients or residents, or within their hearing distance, regardless of their ability to comprehend, or disability.
